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Neutral Citation Number: [ 2011] EWHC 1193 (Admin) |
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Case No: CO/8207/2010 |
DIVISIONAL
COURT
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Royal Courts of Justice Strand, London, WC2A 2LL |
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12/05/ 2011 |
B e f o
r
e :
LORD JUSTICE TOULSON
and
MR JUSTICE LLOYD JONES
____________________
Between:
____________________
Ms Maya Sikand (instructed by GT Stewart) for the Claimant
Ms Esther Schutzer-Weissmann (instructed by CPS) for the Interested Party
The Defendant being neither present nor
represented
Hearing dates: 31 January
2011
____________________
HTML
VERSION
OF JUDGMENT
____________________
Crown Copyright ©
Lord Justice Toulson:
- This claim concerns the
remand
in custody of a 15 year old boy by order of a
Youth
Court
on his appearance following arrest and charge for an offence of murder. The question is whether the
court
had any
responsibility
for deciding the type of accommodation to which he was to be
remanded.
If he had been charged with an offence other than murder, the
court's
power to
remand
him in detention would have been governed by section 23 of the Children and Young Persons Act 1969, as amended ("CYPA 1969"), which allows for different forms of detention and
regulates
the way in which the
court's
power is to be exercised. The question is to what extent, if any, those provisions have been displaced in the case of a 15 year old charged with murder as a
result
of section 115 of the Coroner's and Justice Act 2009 ("CAJA 2009"). The question has caused uncertainty, and has led to different opinions. In granting permission to the claimant to apply for judicial
review,
Cox J described the issue as one of general importance and of growing concern to
Youth
Courts.
- On 5 May 2010 two
rival
gangs of
youths
met in Home Park, Sydenham. There was a fatal stabbing. On 11 May 2010 the claimant was arrested at his home address on suspicion of being involved. He was
released
on police bail while further enquiries were conducted. On 14 July 2010 he was informed that he would be
re-interviewed
and probably charged with murder. He attended the police station with his father, was interviewed, charged with murder and detained in police custody until he appeared on the following day at
Lewisham
Youth
Court
before District Judge Purdy.
- The solicitor
representing
the claimant made no
application
for bail, since he
recognised
that the judge had no power to grant bail by
reason
of CAJA 2009, section 115, but he submitted that it was necessary for the
court
to determine the form of custody in accordance with the CYPA 1969, section 23. The judge
rejected
the submission. He issued two warrants. One was a warrant of committal to the Central Criminal
Court
on a date and at a time to be fixed for consideration of the question of bail. The warrant
required
the claimant to be taken to a prison service establishment and held in custody until produced at the Crown
Court.
The other was a
remand
warrant
requiring
him to be taken to the same prison establishment and held in custody until produced at the next hearing in the
Youth
Court.
The judge held that CAJA 2009, section 115(4) gave him no choice as to the type of accommodation to which the claimant was to be
remanded.
The judge has indicated that he would welcome the guidance of this
court
as to the effect of CAJA 2009, section 115 on CYPA 1969, section 23. The claimant
remained
in a prison establishment until he was granted bail at the Crown
Court
on 9 August 2010.
- The Director of Public Prosecutions (DPP) has been made an interested party in these proceedings and has instructed counsel in order that the
court
should have the benefit of argument in support of the judge's
ruling.
We are grateful to him. It would have been unsatisfactory to decide the question without hearing both sides of the argument.
CYPA 1969, section 23
- Generally speaking, section 23 controls the power of the
court
to order a secure
remand
in the case of a child or young person. For this purpose, a young person is a person who has attained the age of 14 and is under the age of 17: section 23(12). A child is a person under the age of 14: CYPA 1933 ("CYPA 1933"), section 70. Since the age of criminal
responsibility
is 10, a child for the purpose of CYPA 1969, section 23 is one who has attained the age of 10 and is under the age of 14.
- CYPA 1969, section 23 has been amended many times. In its present form, or forms, section 23 is
remarkably
difficult to follow. I use the word "forms", because part of the complexity is that there are effectively two
versions
of the section: one
version
for boys aged between 10 and 14 and girls aged between 10 and 16, and the other
version
for boys aged 15 or 16. This comes about because section 98 of the Crime and Disorder Act 1998 provides:
"1. Section 23 of the 1969 Act shall have effect with the modifications specified in subsections (2) to (6) below in
relation
to any male person who –
(a) is of the age of 15 or 16; and
(b) is not of a description prescribed for the purposes of subsection (5) of that section; and
(c) is not
remanded
in connection with proceedings under the Extradition Act 2003."
- There follow a considerable number of modifications.
- This makes it difficult for a
court
to navigate its way through the section, because in the case of a 15 or 16 year old boy it is necessary to
read
the other
version
as subject to a large number of amendments. Helpfully, the
Youth
Justice Board has produced a
rewritten
version
of section 23 as it applies to 15 and 16 year old boys. An additional complication is that the
Violent
Crime
Reduction
Act 2006, section 61, introduced further amendments but they have not yet been brought into force. All in all, the section is a
recipe
for confusion.
- As it currently applies to a 15 or 16 year old boy (ignoring immaterial exceptions), the section provides:
"(1) Where
(a) a
court
remands
a child or young person charged with or convicted of one of more offences or commits him for trial or sentence; and
(b) he is not
released
on bail, then, unless he is
remanded
to a
remand
centre or a prison in pursuance of subsection (4) (b) or (c) below, the
remand
or committal shall be to local authority accommodation; and in the following provisions of this section, any
reference
(however expressed) to a
remand
shall be construed as including a
reference
to a committal.
(2) A
court
remanding
a person into local authority accommodation shall designate the local authority who are to
receive
him; and that authority shall be
(a) in the case of a person who is being looked after by a local authority, that authority; and
(b) in any other case, the local authority in whose area it appears to the
court
that he
resides
or the offence or one of the offences was committed. …
(4) Where a
court,
after consultation with an officer of a local probation board, an officer of a provider of probation services, a social worker of a local authority or a member of a
youth
offending team, declares a person to be one to whom subsection (5) below applies
(a) it shall
remand
him to local authority accommodation and
require
him to be placed and kept in secure accommodation, if
(i) it also, after such consultation, declares him to be a person to whom subsection (5A) below applies; and
(ii) it has been notified that secure accommodation is available for him;
(b) it shall
remand
him to a
remand
centre, if paragraph (a) does not apply and it has been notified that such a centre is available for the
reception
from the
court
of persons to whom subsection (5) below applies; and
(c) it shall
remand
him to a prison, if neither paragraph (a) nor paragraph (b) above applies. …
(5) This subsection applies to a person who
(a) is charged with or has been convicted of a
violent
or sexual offence, or an offence punishable in the case of an adult with imprisonment for a term of 14 years or more; or
(b) has a
recent
history of absconding while
remanded
to local authority accommodation, and is charged with or has been convicted of an imprisonable offence alleged or found to have been committed while he was so
remanded,
If (in either case) the
court
is of opinion that only
remanding
him to a
remand
centre or prison, or to local authority accommodation with a
requirement
that he be placed and kept in secure accommodation, would be adequate to protect the public from serious harm from him.
(5A) This subsection applies to a person if the
court
is of opinion that, by
reason
of his physical or emotional immaturity or a propensity of his to harm himself, it would be undesirable for him to be
remanded
to a
remand
centre or a prison. "
- In the case of children aged 10 or 11 there is no power under section 23 to order secure
remand.
In the case of children aged 12 to 14 of either gender and girls aged 15 or 16 there is a power (subject to conditions) to order secure
remand,
but it must be to a local authority
rather
than a
remand
centre if local authority secure accommodation is available.
CAJA 2009, section 115
- This section was introduced after a man who was on bail pending trial for the murder of his wife killed his mother-in-law before taking his own life. It provides:
"(1) A person charged with murder may not be granted bail except by order of a judge of the Crown
Court.
(2) Subsections (3) and (4) apply where a person appears or is brought before a Magistrates'
Court
charged with murder.
(3) A judge of the Crown
Court
must make a decision about bail in
respect
of the person as soon as
reasonably
practicable and, in any event, within the period of 48 hours beginning with the day after the day on which the person appears or is brought before the Magistrates'
Court.
(4) The Magistrates'
Court
must, if necessary for the purposes of subsection (3), commit the person to custody to be brought before a judge of the Crown
Court."
- District Judge Purdy considered that subsection (4)
required
him to commit the claimant to a prison establishment and precluded the operation of section 23 of CYPA 1969.
The arguments
- Ms Sikand submitted that CAJA 2009, section 115 does not affect the operation of CYPA 1969, section 23. CAJA section 115(4)
requires
the
Youth
Court
to "commit [the claimant] to custody", but the
Youth
Court
has to determine the form of custody. CYPA 1969, section 23 identifies the forms of custody to which a child or young person, who is not
released
on bail, may be
remanded
or committed. The possibilities are a simple
remand
to the custody of the local authority, a
remand
to local authority accommodation coupled with a
requirement
that the defendant be kept in secure accommodation, and
remand
to a
remand
centre or prison. Before
remanding
the defendant to local authority secure accommodation or a prison establishment the
court
must consult with a member of a
youth
offending team (YOT) or one of the categories of social worker specified in section 23(4).
- Ms Schutzer-Weissmann submitted that when a
Youth
Court
"commit[s] to custody" a child or young person under CAJA 2009, section 115(4), it does not "
remand"
that child or young person within the meaning of CYPA 1969, section 23. The expression "commit to custody" is not apt to include all the forms of custody permitted under CYPA section 23. In particular, it is not apt to include a simple
remand
into the custody of a local authority. The clear purpose of CAJA 2009, section 115 was that anyone charged with murder should be detained in secure conditions unless and until a judge of the Crown
Court
decided to grant bail.
- Ms Sikand observed that a consequence of this interpretation would be that a child aged 10 or 11 who was charged with murder would have to be held in a prison establishment, which would be quite inappropriate for such a child. Children of that age have not been committed to prison establishments for many years.
- Ms Schutzer-Weissmann
responded
that it would be possible for a
Youth
Court
to avoid sending such a child to a prison service establishment by having
recourse
to CYPA 1933, section 44. This provides:
"Every
court
in dealing with a child or young person who is brought before it, either as…an offender or otherwise, shall have
regard
to the welfare of the child or young person and shall in a proper case take steps for
removing
him from undesirable surroundings, and for securing that proper provision is made for his education and training."
The argument was that CAJA 2009, section 115 must be
read
with the general provisions of CYPA 1933, section 44, but not with the much more specific provisions of CYPA 1969, section 23, at the stage when the child or young person appears before the
Youth
Court.
(It is common ground that section 23 would continue to apply at the stage when the defendant appears at the Crown
Court.)
Discussion and conclusion
- CYPA 1969, section 23 contains a carefully calibrated, if confusingly complex set of provisions for determining how young defendants in criminal cases who are not granted bail should be detained. CAJA 2009, section 115 is capable of being
read
in harmony with CYPA section 23 in the way that the claimant contends. This is the most straightforward way of
reading
the two sections and in my judgment it is the
right
way. In other words, a
Youth
Court
cannot grant bail to a child or young offender charged with murder, because that can only be granted by the Crown
Court,
but in determining the form of custody it must apply section 23 as it would in any other case.
- It is common ground that prior to the enactment of CAJA 2009, section 115 the provisions of CYPA 1969, section 23 applied to a child or young person charged with murder. When CAJA 2009, section 115 was enacted, Parliament did not expressly amend CYPA 1969, section 23 so as to exclude children and young people charged with murder from the scope of the section at the
Youth
Court
stage. I would
reject
the argument that Parliament should be taken to have brought about such a change by necessary implication.
- Besides linguistic considerations, there is a constitutional point here of some importance. If the drafter conceived it to be the purpose of the minister promoting the Bill that CYPA 1969, section 23 should be qualified so as not to apply to a child or young person appearing at a
Youth
Court
on a charge with murder (albeit that it would continue to apply at the Crown
Court),
this should have been made clear in the Bill by express language. I have no doubt that Parliamentary Counsel would in truth have done so. This would have alerted the public, particularly children's organisations, and members of Parliament to the proposed amendment. It would have been a matter crying out for further consideration, as the arguments in this case have demonstrated. Among other things, it would have
raised
a serious question as to its conformity with the UN Convention on the
Rights
of the Child, and that would have been a matter of likely concern to the Parliamentary Joint Committee on Human
Rights.
Counsel for the DPP has helpfully
researched
the debates on the Bill including in committee. It is striking that the position of children and young people appears never to have been mentioned. It is plain that the implications of section 115 for which the DPP contends passed unnoticed because they were never spelled out.
- If the DPP's argument is
right,
the
result
would be disjointed legislation. The suggestion by Ms Schutzer-Weissmann that Parliament silently intended the general words of CYPA 1933, section 44 to provide a means of escape from CAJA 2009, section 115 is ingenious but unrealistic. Putting that aside, the interpretation of section 115 advanced by the DPP would be liable to produce most unsatisfactory consequences including, at the extreme, the imprisonment of 10 year olds. Even for a child or young person charged with an offence as grave as murder,
remand
in a prison establishment should be the final
resort.
It is impossible to believe that Parliament can have intended it to be mandatory,
regardless
of whether the defendant could be safely kept in more suitable accommodation.
- Ms Schutzer-Weissmann emphasised that the duration would be short. She also suggested that there might be difficulty in a
Youth
Court
being able to carry out the necessary consultation with a member of the YOT team at the time of the defendant's first appearance. However, we were informed that in practice YOTs co-operate with
Youth
Courts
in being available for consultation in serious cases at
very
short notice. Moreover, although the Act
requires
a defendant to be brought before the Crown
Court
within 48 hours, the present case shows that the
reality
is sometimes different. In this case the claimant was first due to appear before the Crown
court
by
video
link on Monday 15 July 2010 (four days after his appearance before District Judge Purdy), but he was not produced and there was no
representative
from the local authority, probation or YOT in attendance. So the case was adjourned. More fundamentally, it is not a good argument for implying a mandatory
requirement
to detain a child or young person in a prison establishment, even where another form of custody would be more suitable, that the period of such detention would be not be likely to be long.
- For those
reasons
I would grant the claimant's
application
for judicial
review
of the judge's decision and declare that his
ruling
that CYPA 1969, section 23 does not apply in the case of a child or young person who appears before a
Youth
Court charged with murder was wrong in law.
Mr Justice Lloyd Jones:
- I agree.
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